The New Republic

The New Republic

The Torture Report Will Make It Harder for the Government to Prosecute Guantánamo Prisoners

John Moore/Getty Images

Innocent until proven guilty. It’s a basic tenet of American law, international law, and moral intuition. And with the presumption of innocence, a ban on pretrial punishment follows. On Tuesday, the Senate Intelligence Committee released a redacted summary of their report detailing the CIA’s enhanced interrogation program. Their findings confirm what should have been accepted as fact years ago: The prisoners held at Guantánamo Bay were punished to the fullest extent possible without a trial determining their guilt.

Most of the prisoners at Guantánamo will never see a courtroom, but there are six men who are currently facing the death penalty if found guilty: Abd Al-Rahim Al-Nashiri, the alleged mastermind of the U.S.S. Cole bombing; and Khalid Sheikh Mohammed, Walid Bin-Attash, Ramzi Bin al-Shibh, Ammar Al-Baluchi, and Mustafa Al-Hawsawi, the fivedefendants charged with planning the September 11 attacks. All six men are included in the Senate report, and they were subject to CIA interrogation tactics that included rectal feeding, sleep deprivation, and waterboarding sessions that caused detainees to vomit and lose consciousness.

While the fact that these men were tortured should surprise no one, the declassification of that information should ostensibly make it more difficult for the government to charge them with a crime, much less sentence them to death. Article 13 of the Uniform Code of Military Justice (UCMJ) describes a prohibition against pretrial punishment. If an individual is punished before being found guilty of a crime, they are entitled to relief, which can range from a reduced sentence to complete dismissal of charges.

There is no equivalent clause in the Military Commissions Act of 2009, the special set of laws governing Guantánamo trials. “When cutting and pasting from the UCMJ to create the Military Commissions Act, the government apparently attempted to take away the right to be free from pretrial punishment,” said Air Force Captain Michael Schwartz, a Judge Advocate General who represents Bin-Attash. “But the right still exists under both the U.S. Constitution and international law. In light of what we are seeing in the SSCI [Sentate Select Committee on Intelligence] report, Mr. Bin-Attash clearly is due significant relief from any sentence the military commission imposes. If the 9/11 trial were being tried under the UCMJ, it is highly unlikely that the death penalty would be available as a potential sentence in light of this now-confirmed evidence,” he added.

There’s a strong precedent for Schwartz’s argument. In 2008, Susan J. Crawford, the convening authority of the military commissions, dismissed charges against Mohammed Al-Qahtani, who was initially included in the 9/11 case. The following year, Crawford, a lifelong Republican who has expressed sympathy for the tough choices the CIA was forced to make, explained her decision: "We tortured Qahtani … His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.

By 2009, it was obvious to anyone involved in the military commissions that Qahtani’s five co-defendants were tortured as well—but information about their torture remained classified until Tuesday, and has therefore largely been kept out their trial. “Mr. Bin-Attash was forced stand, awake, for 93 out of 97 hours. I couldn’t tell you that a few days ago or I’d face prosecution. Which is absurd, considering it’s my job to defend him. Part of defending him is getting the truth out,” said Schwartz.

Even after the release of the Senate report, defense lawyers representing Guantánamo detainees are still obligated to stay silent about details of their clients’ torture which were not included in the report summary. On Wednesday, the Office of Military Commissions sent lawyers an email reminding them to “be vigilant regarding restrictions associated with other aspects not covered by this report.” A subsequent email read, “The release of yesterday's Exec Summary from the SSCI does not relieve us of our responsibilities to protect classified information. We must still adhere to current guidance, policies, and protocols until new guidance and polices are issued. The only change is the un-redacted information contained in the Exec Summary is unclassified and may be treated as such.”

The executive summary is just 11 percent of the total report, which is over 6,000 pages long. Although the descriptions of torture in the summary are horrifying, they are likely only a small glimpse of the abuses committed by the CIA. “The main effect of the release of the redacted summary report is to demonstrate the importance of releasing the remainder of the report and the underlying documents [referenced in over 35,000 footnotes],” said James Connell, lawyer for 9/11 defendant Al-Baluchi. “For example, the Senate report summary acknowledges EITs [enhanced interrogation techniques] were used on Mr. Al-Baluchi for the first time. But it doesn’t describe what they are,” he added.

So far, the Senate Intelligence Committee has been hesitant to share the full report with the defense lawyers, who are simultaneously pushing the prosecution (the U.S. government) to release the report in the discovery phase of the case. “There's no way that a Senate staffer should be able to see this information, but an active duty military officer with a Top Secret clearance representing a capital defendant can't,” said Schwartz. “A good portion of what was just released to the public is information that, just last week, military commissions prosecutors refused to provide to military defense lawyers with Top Secret clearances. So not only does the report reveal some of the truths of the CIA's torture program, it exposes one of the straw-man arguments prosecutors have been making on behalf of the CIA at Guantanamo's kangaroo court.”